RAPE
The offence of Rape in Nigeria is governed by three
major statutory provisions:
The Criminal Code
The Penal Code
The Violence Against Persons (Prohibition) Act,
2015
CRIMINAL CODE PROVISIONS
Section 357 of the CC- Any person Definition of
who has unlawful carnal knowledge of a Rape
woman or girl, without her consent, or
with her consent, if the consent is
obtained by force or by means of
threats or intimidation of any kind, or by
fear of harm, or by means of false and
fraudulent representation as to the
nature of the act, or in the case of a
married woman by personating her
husband, is guilty of an offence called
rape.
Section 358 of the CC-Any person Punishment
who commits the offence of rape is for Rape
liable to imprisonment for life, with or
without caning
Section 359 of the CC- Any person Attempt to
who attempts to commit Rape is guilty Commit
of a felony and is liable to imprisonment Rape
for fourteen years, with or without
caning.
PENAL CODE PROVISIONS ON RAPE
Section 282 of the PC- A man is said Rape
to commit rape if he has sexual defined
intercourse with a woman in any of the
following circumstances-
(a) against her will
(b) without her consent
(c) with her consent, when her consent
has been obtained by putting her in fear
of death or of hurt;
(d) with her consent, when the man
knows that he is not her husband and
that her consent is given because she
believes that he is another man to
whom she believes herself to be lawfully
married.
(e) with or without her consent, when
she is under fourteen (14) years of age
or of unsound mind.
Note- sexual intercourse by a man with
his own wife is not rape, if she has
attained the age of puberty.
Section 283 of the PC- whoever has Punishment
carnal intercourse against the order of for Rape
nature with a man, woman or animal,
shall be punished with imprisonment for
a term which may extend to fourteen
(14) years and shall also be liable to
fine.
STATUTORY PROVISION ON RAPE UNDER THE
VIOLENCE AGAINST PERSONS(PROHIBITION) ACT,
2015
Section 1 of The Violence Against Persons
(Prohibition Act )2015, provides a new frontier to the
law of rape in Nigeria. Section 1 provides –
1.A person commits the offence of rape if –
(a) He or She intentionally penetrates the vagina,
anus or mouth of another person with any other
part of his or her body or anything else.
(b) If the other person does not consent to the
penetration; or
(c) If the consent is obtained by force or means of
threat or intimidation of any kind or by fear of
harm or by means of false and fraudulent
representation as to the nature of the act or the
use of any substance capable of taking away the
will of such person or in the case of a married
person by impersonating her spouse.
2.A person convicted of an offence under subsection
(1) of this section is liable to imprisonment for life
except:
(a) Where the offender is less than 14 years of
age, the offender is liable to a maximum of 14
years imprisonment.
(b) Xxxxxxx(verify this ) In all other cases, to a
minimum of 12 years imprisonment without an
option of fine, or
(c) In the case of rape by a group of persons, the
offenders are liable jointly to a minimum of 20
years imprisonment without an option of fine.
[Link] court shall award appropriate compensation to
the victim as it may deem fit in the circumstance.
4.A register for convicted sexual offenders shall be
maintained and accessible to the public.
By the provision, of this new law the elements of the
offence of rape are as follows:
(a) That there is a penetration of the vagina, anus
or mouth of another
(b) That the penetration can be accomplished with
any part of his or her body or anything else.
(c) That this is without consent
(d) That the consent was obtained by force, or
threat or intimidation, or any fear or kind of harm,
or by false and fraudulent representation, or use of
any substance capable of not making a person
master of his mind or by personation his or her
spouse.
(e) That the act of rape can be carried out by a he
or she.
Note: the provisions of rape under the Violence Against
Persons Act, 2015 clearly challenges traditional concept
of rape that it could be committed by a male alone. In
consonance with the statute of the international
criminal court, and the pronouncements of the courts in
the decisions of the International Criminal Tribunals,
Nigerian Legislature adopted the position that rape
could be committed outside the traditional mode and
by non-traditional means.
Note- the provision on punishment to some extent still
sucks or is still haunted by the ghost of previous
legislation. The provision has always been especially
under the Criminal Code, is “liable” which gives the
court discretion rather than “shall” which mandates. It
is therefore not surprising that “is liable to
imprisonment for life” is limited by an underage person.
“In all other cases” to a maximum of 12 yrs. without an
option of fine and 20 years without an option of fine for
group rape. For protagonists of custodial sentences,
this provision is leprous but for antagonists of it and
protagonists of non-custodial sentences, the provision
is apt as the prisons in Nigeria are bedevilled by a
galaxy of problems including horrible environment and
overcrowding.
Commendably however, these provisions now for the
payment of compensation and the keeping of register
for convicted sexual offenders which has the objective
of naming and shaming convicts are for deterrent
purposes.
BASIC PRINCIPLES AND CASE AUTHORITIES
In legal parlance, any person who has unlawful carnal
knowledge of a woman or girl without her consent or
with her consent if the consent is obtained by force or
by means of threats or intimidation of any kind or by
fear or harm or by means of false and fraudulent
representation as to the nature of the act is guilty of
the offence of rape. Okoh v Nigerian Army (2013) 1
NWLR (Pt. 1334) 16
The essential ingredients of the offence of rape are
penetration and lack of consent. Sexual intercourse is
deemed complete upon proof of penetration of the
penis into the vagina. Emission is not a necessary
requirement. Any or even the slightest penetration will
be enough to constitute the act of sexual intercourse.
Thus where penetration is proved but not of such a
debt as to injure the hymen, it will be sufficient to
constitute the crime of rape. Okoh v Nigerian Army
(2013) 1 NWLR (Pt. 1334) 16
Corroboration of evidence is not required except where
the law demands it. Evidence of corroboration of the
evidence of the victim in rape case is not required as a
matter of law, but it is required in practice. In other
words, in the cases of sexual character, it is desirable
that the evidence of the complainant should be
strengthened by other evidence implicating the
accused person in some material manner. It is however
not a rule of law that an accused person in a charge of
rape cannot be convicted on the uncorroborated
evidence of the prosecutrix. Ogunbayo v state (2007)
8 NWLR (Pt 1035) 157.
Corroboration means no more than evidence tending to
confirm, support and strengthen other evidence sought
to be corroborated Ogunbayo v state (2007) 8 NWLR
(Pt 1035) 157.
A piece of evidence offered for the offence of rape must
be(a) cogent, compelling and unequivocal as to show
without more that the accused committed the offence
charged.(b) an independent evidence which connects
the accused with the offence charged (c ) evidence that
implicates the accused in the commission of the
offence charged. Ogunbayo v state (2007) 8 NWLR
(Pt 1035) 157.
Evidence in corroboration must be an independent
testimony, direct or circumstantial with confirms in
some material way not only that an offence has been
committed but that the accused person has committed
it. A Corroboration need not consist of direct evidence
nor does it need to amount to a confirmation of the
whole account given by the witness, provided it
corroborates the evidence in some respect material the
charge. Ogunbayo v state (2007) 8 NWLR (Pt 1035)
157.
Corroboration means evidence which confirms or
supports or strengthens other evidence adduced at the
trial and rendering the later more probable. Okoh v
Nigerian Army (2013) 1 NWLR (Pt. 1334) 16
There is no law which says that there must be
corroboration in a charge of rape. It is however true
that an accused can be convicted on the
uncorroborated evidence of the prosecutrix. Okoh v
Nigerian Army (2013) 1 NWLR (Pt. 1334) 16
It is an established practice in criminal law that though
corroboration of the evidence of the complainant in a
rape case is not statutory requirement, it is in practice
always looked for. In other words, it is a well-
established practice of courts in Nigeria that in cases of
rape that the evidence of the complainant should be
corroborated. The nature of the corroboration must
necessarily depend on the peculiar facts of each case.
It could be a medical evidence showing injury to the
private part of the complainant, injury to other parts of
the complainant which may have been occasioned in a
struggle, seminal stains on her cloths or the cloths of
the accused or on the place offence is alleged to have
been committed. Where prosecution evidence is no
sufficiently strong to warrant a conviction, it will be
unsafe to convict merely on the accusation of a woman
who alleges that she has been raped. Okoh v
Nigerian Army (2013) 1 NWLR (Pt. 1334) 16
Rape is rape once proved. The fact of previous
intercourse or the existence of or presumed suspected
active sexual partnership will not negative the offence
of rape by imputing consent where the contrary has
been proved. In the instant case, even if the prosecutrix
and the accused were consensual lovers who were
having sexual intercourse, the occasion of the fateful
sex in the circumstances mentioned above constitutes
the offence of rape nonetheless. Okoh v Nigerian
Army (2013) 1 NWLR (Pt. 1334) 16
A single credible witness can establish a case beyond
reasonable doubt unless where the law requires
corroboration. In other words the court can act on the
evidence of one single witness if the witness can be
believed given all the surrounding circumstance of the
case. Okoh v Nigerian Army (2013) 1 NWLR (Pt.
1334) 16